We were interested to read Master Julian Polika’s decision in Cango Inc. v. D. & S. Equipment Ltd. Not so much for the substance of the decision (striking a pleading for referring to settlement negotiations). Rather, it was the ruling with respect to costs that we found intriguing.
The Master refused to award costs to the successful moving party (the defendant) because its counsel had failed to file a Costs Outline (Form 57B), as required by Rule 57.01(6). This rule came into effect on July 1, 2005. It requires every party seeking costs for a step in the proceeding, to bring to that step (e.g., a motion or a trial) a “costs outline”. The outline (known as “Form 57B”) is supposed to set out the amount claimed for fees and disbursements, information in reference to the factors set out in SubRule 57.01(1), the hours actually spent, the rate actually charged, the Lawyer’s Certificate certifying that the hours claimed have been spent, that the rates shown are correct and that each disbursement has been incurred as claimed.
In this case, the winning party did not come to the motion with a costs outline, as required. Master Polika had clearly had enough of lawyers ignoring this rule. He ruled that filing a Form 57B was a condition precedent to recovering costs:
[12] I note in SubRule 57.01(6) the word “shall” is used. Given the purpose and effect of a Form 57B in the costs process in my view “shall” as used in SubRule 57.01(6) must be treated as mandatory absent some real basis explaining why Form 57B could not have been delivered as required. Here no such basis was tendered. What the successful counsel wanted me to do, is address costs on the basis of oral unsubstantiated submissions. I am of the view that I could not do substantive and procedural justice by fixing costs based on such oral submissions.
[13] The failure to deliver a Form57B, notwithstanding that the motion in general terms sought costs of the motion works to the prejudice of respondents to the motion. They have no basis upon which to judge what is actually being sought for costs and how much money will be put in issue for costs if they oppose the motion.
[14] For the aforesaid reasons I find that If a party wishes costs of a motion the delivery of a Form 57B is a mandatory condition precedent to enable the court to fix costs. Failure to deliver a Form 57B is fatal absent some real basis justifying such failure. [Emphasis added]
What we find particularly fascinating about this decision is how much it is at odds with our own experience before judges of the Superior Court. For the most part, we have found that judges either (a) have never heard of Form 57B; (b) think it is the same as the “costs envelopes” that were formerly used in Ottawa up until a year ago; or (c) know of the Form but don’t especially want it to be given to them. (There are exceptions. We have not checked each and every judge, even in the Ottawa area, but in our own (unscientific) experience, certain judges do adhere to the Rule. Justice Albert Roy, come on down! And of course, our own Case Management Master, Robert Beaudoin, has been enforcing the Rule since its introduction last year. We’re sure there are others who are trying to implement the Rule. But many are not.)
Speaking as ordinary Elgin Street hacks (to paraphrase John Mortimer), these forms take a long time to prepare. After repeatedly discovering that you’ve spent all of that time for nothing, the incentive to keep preparing the forms is, shall we say, lessened.
Superior Court judges are not bound by today’s decision of Master Polika. But perhaps it will serve as a wake-up call to the judges, to enforce the Rule or to tell the Bar that they will not do so.